C.A. Warns of ‘Trap for the Unwary’ in Law on
Dismissals for Inconvenient Forum

By
a MetNews Staff Writer

A
dismissal of an action on inconvenient forum grounds is a final, appealable
judgment even if it is in the form of an unsigned minute order, the Fourth
District Court of Appeal has ruled.

Warning
of a statutory “trap for the unwary,” Div. Three Wednesday dismissed an appeal
from an order dismissing an intellectual property suit. The defendant, Virginia
software firm Icode Corp., sought the dismissal of the action by Quest
International, Inc. on the ground that the licensing agreement on which the suit
was based required that any litigation be brought in Virginia.

The
case, as described by Presiding Justice David Sills for the Court of Appeal,
involved a convoluted series of proceedings in which Orange Superior Court
Judge Dennis Choate successively denied the motion to dismiss, reconsidered on
his own motion, entered an unsigned minute order granting dismissal, then
granted a formal motion to reconsider under Code of Civil Procedure Sec. 1008.

“But,
after ‘reconsidering,’ the trial court re-affirmed its (reconsidered!) decision
to grant the motion to dismiss,” Sills explained. “However, this time it
entered not a simple order granting the motion to dismiss, but an order
directly ‘dismissing’ [the] case, an order which also specifically required preparation
of a formal order of dismissal by defense counsel.”

Further
delaying matters, the presiding justice said, defense counsel never got around
to preparing the order. More than seven months later, however, plaintiff’s
counsel prepared his own order, obtained the judge’s signature, and filed an
appeal 59 days later.

The
appeal was untimely, Sills explained, because it was filed more than 180 days
after entry of the minute order.

In
an opinion fortified by citations to Shakespeare, the Bible, and Stephen
Sondheim, the jurist went on to explain that in the normal case, an unsigned
minute order is not a final order and therefore does not trigger the time in
which to appeal. But Code of Civil Procedure Sec. 904.1(a)(3), Sills wrote,
“creates a counterintuitive exception, because it makes even unsigned minute orders granting motions to
dismiss for inconvenient forum directly appealable.”

He
continued:

“Further,
such an order — unlike some other appealable
orders under section 904.1 — constitutes a ‘final judgment’ as the
term is defined in section 577. But, and here’s the real trap — as a final
judgment it cannot be attacked by a motion for reconsideration. In fact, the
trial court does not even possess the authority
to undo or amend it, on its own motion or prompted by a litigant.”

Thus,
the unsigned order of dismissal was the only appealable order in the case, and
the appellate panel was “reluctantly” required to dismiss the appeal, Sills
said.

He
elaborated:

“With
these conclusions, Quest’s California
appeal must die its death. Venue was conclusively established to be in
Virginia by an order final as of mid-January [2003; the appeal was filed in May
of that year] though perhaps it is some comfort to realize that Quest should be
able to obtain a fair hearing on its claims of lousy software produced by Icode
just as much in Virginia as in California. That’s certainly a better prospect
than history’s most famous change-of-venue case, [the Vatican’s
assumption of Henry VIII’s divorce case] where the losing lawyer [Cardinal
Wolsey] got himself arrested for treason because of the venue change.”